Rules meaning that patients found to have been the victims of medical
negligence must receive private care rather than using the NHS should be
changed to curb the “unsustainable” bill for legal payouts, it has been
suggested.

The annual total paid out for such claims has soared to £1.2 billion placing a huge strain on health service financesPhoto: ALAMY

The annual total paid out for such claims has soared to £1.2 billion placing a huge strain on health service finances.

Christine Tomkins, chief executive of the Medical Defence Union, told BBC Radio 4’s Today programme: "We have a system now in which claims inflation is far outstripping any other sort of inflation - wage inflation or price inflation.

"We have a system where, ultimately, the cost of paying damages in these cases is really unsustainable.

"Mainly it is caused by the cost of long-term care for severely damaged patients and of course these patients do need that care.

“These patients do need that care.

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“But what I think perhaps might be a surprise is that the way in which compensation is paid for this type of injury at the moment disregards the sort of care that can be provided by the NHS which is often very good and very capable of providing this type of long-term care.”

She said that rules dating back to the foundation of the health service in 1948 meant even if it were capable it would be “disregarded” when compensation was calculated.

"What that means is that the NHS is in effect having to pay the cost on the basis that all the future care will be provided in the private, independent sector.

“What that means is that the NHS is paying to set up 'one-man institutions' to care for these very badly damaged patients. There really must be a better way of doing this.

“There is no doubt that the aim should be to avoid negligent injury to patients in the first place and that we should be concentrating all our efforts on clinical risk management.

“When it occurs we have to make sure that patients are fairly compensated and that that compensation is on a sustainable basis.”

Ms Tomkins suggested that it could be possible to use a payout to buy a “package of care” to deal with all of the patient’s future needs.

She cited figures from the NHS Litigation Authority which put its total liability at £16.7 billion in 2011.

"That's an awful lot of taxpayers' money. And if you look at the rate of increase, in 2010 they paid out £863 million in compensation and in 2011 that figure was £1.2 billion. That is a 39% increase in a single year."

Her comments came in the wake of a £7.1 million payout to Charlie Scott after mistakes made during birth left him brain-damaged and unable to walk, talk, sit up or drink without assistance.

His mother Clare Scott, who fought a 14-year legal battle to win the compensation, said the NHS would not be able to provide the same kind of round-the-clock care, with the same staff looking after her son, that he had been given.